[2017] KEHC 115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL CASE NO 61 OF 2016

DAVIS KIPNGETICH LANGAT................APPELLANT

-VERSUS-

REPUBLIC.................................................RESPONDENT

(Being an appeal from the original conviction and sentence in

Criminal Case No.65/2015at C.M’s Court Molo on the 29thday

ofMarch 2016by Hon. Rita Amwayi, Resident Magistrate)

JUDGMENT

Introduction

1. The appellant in this case was tried and convicted of the offence of defilement contrary to Section 8 (i) (3) of the Sexual Offences Act, 2006. The particulars of the offence were that on the month of November 2014 Kericho County intentionally and unlawfully caused his penis to penetrate the vagina of NC a child aged 15 years. He also faced the alternative charge of committing indecent act with a child Contrary to Section 11 (i) of the Sexual Offences Act, 2006.

2. Evidence before the trial court was given by the complainant (PW1) a clinical officer (PW2) and the investigating officer (PW3). The complainant (PW1) testified that she was 15 years old having been born on 3rd May 1999. She told the court that she had an intimate affair with the accused whom she knew by the name Davis. That Davis had started seducing her in 2013 and she refused. They started having sexual intercourse in November 2014 and it was then that she conceived. Medical evidence was produced by PW2 a clinical officer at Londiani Sub-County hospital. He testified that the complainant had visited the facility on 8th January 2015 with a history of having been defiled and impregnated by a person known to her. A pregnancy test was done and it turned positive with an approximation that the pregnancy was 2 months old. An age assessment test was also done and the complainant. She was assessed to be 15 years old.

3. The investigating officer (PW3) testified that a defilement report was received at the Londiani Police Station. She interrogated the complainant and also interrogated the accused. That the complainant told her that he had sexual intercourse with Davis Langat (accused) and that when she reported the pregnancy to him they agreed to get married. She also interrogated the accused. When put on his defence, the appellant gave sworn testimony in which he denied having committed the offence and further that he did not even know the complainant. He said that he only saw the complainant at the police station. He called two witnesses who testified that they knew him and further that they did not believe that he (the accused) committed the offence.

4. The trial court found the charge proved beyond reasonable doubt and in a judgment delivered on 29th March 2016 convicted and sentenced the accused to serve 25 years imprisonment. The said judgment has now been appealed.

The appeal

5. The appellant filed the petition of appeal on 10th April 2016. His homegrown petition was subsequently amended by his counsel Omonywa Namwacha & Co. Advocates on 27th October 2017 pursuant to leave granted by the court on 30th September 2016. The amended petition listed the following grounds of appeal:-

i. That the learned trial magistrate erred in law and in fact in failing to consider the evidence of the accused.

ii. That the learned trial magistrate erred in law and in fact in relying on the accused’s phone number to link the accused to the complainant and the alleged offence.

iii. That the learned trial magistrate erred in law and in fact in failing to consider that the investigating officer did not conduct DNA test on the child who was allegedly born out of the act of defilement in order to ascertain whether the accused was the biological father of the child in question.

iv. That the trial magistrate erred in law and and in fact by failing to take into account the fact that the person allegedly provided his/her house to the accused for the purpose of having sexual intercourse with the complainant, was neither identified nor produced in court as a witness.

v. That the trial magistrate erred in law in fact in holding that the complainant did not have any reason to lie to the police that it was the accused who defiled and impregnated the complainant.

The appellant’s submissions

6. At the hearing of the appeal, the appellant was represented by learned counsel Namwachawhile the respondent was represented by the learned senior prosecution counsel Motende. Both counsel made oral submissions. Mr. Namwacha submitted on the 1st ground that the trial court did not consider the evidence of the accused that he (the accused) did not know the complainant at all and only met her at the police station prior to his arrest. That the complainant’s evidence that she was defiled by the appellant was not corroborated. On the 2nd ground to the effect that the case was not proved beyond reasonable doubt, counsel faulted the evidence pertaining to the appellant’s arrest. He submitted that the person who called the appellant to go to the police station was not called to testify and neither was the mobile service provider called to come and confirm that the accused and the complainant used to communicate. He relied on Criminal Case William Okeyo Linondo V.R. Criminal Appeal No.79 of 2015.

7. On ground 3, the appellant’s counsel argued that the allegation that the complainant became pregnant as a result of the alleged defilement was not proved beyond reasonable doubt. That DNA was not conducted to ascertain the person who had impregnated the complainant and that the complainant’s brother who was alleged to have discovered the pregnancy was not called to testify. On this submission, counsel placed reliance on Gaileth Mubarak Elkana –V- Republic Criminal Appeal No. 48 of 2013 (2013 eKLR).

The Respondent’s Submissions

8. In opposing submissions learned senior prosecution Counsel Mr. Motende urged that the evidence of PW1 was clear that she knew the appellant very well and that they had sexual intercourse in November 2014. He submitted that the appellant’s assertion that he did not know the complainant was untrue. He observed that the appellant had contradicted himself when he said that he met the complainant at the police station. Counsel submitted that the evidence of PW2 corroborated that of PW1 and the P3 Form showed that there was penetration. Counsel further submitted that there was no need to call the evidence of the mobile phone service provider as the appellant knew the complainant. In response to the appellant’s submission that the DNA was not conducted counsel submitted that the same was not necessary as penetration was proved by the P3 form. He submitted that Section 124 of the Evidence Act allows conviction on the uncorroborated evidence of the complainant if the same is believed by the court.

Analysis

9. This is a first appeal. As such I am under duty to subject the evidence tendered before the trial court to fresh and exhaustive evaluation so as to reach an independent verdict. See Pandya Vs. Republic (1957) E.A. 336 and Okeno Vs. Republic (1972) E.A. 321.

10. The key issues in this appeal as far as can be gleaned from the grounds of appeal and the submission of the parties are:-

i. Whether the evidence adduced before the trial court was sufficient and proved the case beyond reasonable doubt;

ii. Whether failure to undertake DNA testing was fatal to the prosecution’s case; and,

iii. Whether the appellant was identified as the person who defiled the complainant.

11. Section 8(1) of the Sexual Offences Act under which the appellant was charged states that ‘a person who commits an act which cause penetration with a child is guilty of an offence termed defilement. Sub-section 3 provides the sentence upon conviction as imprisonment for a term of not less than 20 years. Two key elements emerge in this section. Firstly, the penetration must be proved; and secondly, the complainant must be a child or a person below the age of 18. In Evans Wamalwa Simiyu V. R. (2016) eKLR the court of appeal stated that the offence of defilement is established once there was an act of penetration or partial penetration with a victim who is below the age of 18 years. It follows therefore that the age of the victim must be proved to be below 18 years. It is to be noted however that the Act provides different sentences depending on the age of the victim. This is what makes proof of age important for purposes of sentencing. This position was clarified by the court of appeal in Stephen Nguli Mulili Vs. Republic (2014) eKLR where the court clearly clarified and distinguished the proof of age for purposes of establishing that the complainant was below 18 years and proof of age for purposes of sentencing.

12. There was no dispute on the age of the complainant. According to her testimony she was 15 years old having been born on 3rd May 1999. She had also been examined at Londiani Sub-District Hospital and an age assessment done, where she was assessed to be 15 years old. The clinical officer – PW3 produced the age assessment report (Exhibit 3). This evidence was not challenged at all at trial and neither has it been raised in this appeal. I therefore affirm the finding that the age was proved.

13. There was also no dispute that an act of penetration occurred. The complainant was examined by a Dr. Biwottat the Londiani Sub-County hospital on 7th January, 2015. He noted the general history in the P3 report: “Presented to us at 2 months gestation, reports to have willingly engaged in the sexual act with an adult. Systemic examination was normal but the pregnancy test in urine positive.” The doctor also noted there were no injuries to the genitalia. A laboratory test report (Exh. 21) showed that a pregnancy test was done and it showed that the complainant was pregnant. With a pregnancy of 2 months and barring any proof of a scientific method through which the complainant had acquired the pregnancy, it is my finding that the medical evidence presented to the trial court proved the act of penetration and that at age 15, the complainant had not only been defiled, but was two months pregnant. Besides the medical evidence, the complainant herself testified that she had engaged in sexual intercourse with the accused in the month of November 2014.

14. The accused denied committing the offence. He stated in his brief sworn testimony that he did not know the complainant. In cross-examination, he said he was a boda boda rider and did not know why he had been implicated. He said he received a phone call through his cellphone which informed him that he was needed at the police station and was arrested when he went there. The accused also called two witnesses. Joseph Nganya (DW2) told the court that the accused was his friend and that he thought that the allegations against him were not true. He admitted in cross-examination that he did not know whether the accused had a girlfriend in 2014 or not and that he was not living in the same house with the accused in the month of November 2014. Christopher Mwangi Macharia (DW3) testified that he had known the accused for 20 years (being his neighbour) and that he knew that the accused did not commit the alleged offence. He admitted in cross-examination that he did not know the whereabouts of the accused in the month of November 2014 and that he could not tell if the accused committed the offence as they were not together all the time.

15. The appellant’s counsel submitted that the evidence linking the appellant to the defilement was weak because there was no corroboration of complainant’s evidence, that the telephone call leading to the accused’s arrest was not verified and that no DNA was conducted to link the accused to the pregnancy. This submission points to a dispute over the identification of the appellant as the person who defiled and impregnated the complainant.

16. Evidence linking the appellant to the defilement was given by the complainant. As earlier stated she told the court that the accused had seduced her since 2013 and that they started having sexual intercourse in November 2014. The court believed the testimony of the complainant with regard to linking the appellant to the defilement. It was perfectly entitled to do so as allowed by Section 124of theEvidence Act. Further, as submitted by the respondent’s counsel, the court was entitled not to call for a DNA test. As already stated, DNA testing is not necessary to prove the offence of defilement. As already observed above the offence of defilement is complete once penetration has been proved and once the age of the complainant is proved to be below 18. Whether the defilement results in a pregnancy is immaterial.

17. In this case however, the appellant denied that he knew the complainant. He disowned any knowledge of an on-going intimate relationship. Other than the testimony of the complainant no other witness was called to shed light on the possibility of the two being known to each other. It appears that once the appellant denied knowing the complainant, the burden was shifted to him to prove that he did not actually know her. This puts the evidence linking the appellant to the defilement on shaky ground. Further the appellant was not arrested immediately the defilement happened but two months later when the complainant was found to be pregnant. This means that it would not be possible to get evidence of sexual intercourse between the two. The pregnancy would therefore have provided a vital link between the accused and the complainant. If DNA testing had been done, it would have corroborated the complainant’s testimony that the appellant had sexual intercourse with her, a result of which was the pregnancy that medical examination positively confirmed. In this regard therefore the DNA test would have completely sealed any gaps in the identification of the appellant as he would have been confirmed to be the father of the child and therefore the defiler.

18. My conclusion then is that the evidence firmly shows that the minor complainant was defiled and had been so defiled as at February 2016. The evidence does not however, and due to the gaps in the investigation and prosecution of the case, prove beyond reasonable doubt that it was the appellant who defiled her.

19. I shall in the premises, and not without empathy to the complainant, give the benefit of doubt to the appellant as the law demands. I quash the conviction and set aside the sentence. The appellant is set at liberty forthwith unless otherwise lawfully held.

Judgment delivered, dated and signed at Nairobi this 30th day of November 2017

R. LAGAT KORIR

JUDGE

In the presence of:-

……………………… Court Clerk

……………………… Accused

……………………… for Accused

……………………… for state